Will state panel recommend more or less transparency for NC attorney complaints?
A legislative committee is exploring whether the system that investigates and disciplines North Carolina attorneys should change.
Both steps are the responsibility of the N.C. State Bar, whose grievance process is key for members of the public who have complaints about how attorneys handle their cases.
But initial comments from committee members indicate that they are focused on protections for lawyers.
At the committee’s first meeting last month, the group’s co-chairs suggested that lawyers needed to be protected from disciplinary complaints targeting them for speech or beliefs outside the courtroom.
Co-chair Woody White, a Wilmington lawyer and member of the UNC Board of Governors, said the committee needed to ensure “that we’re not allowing the public to use the bar as a weapon against people, to cancel and to otherwise curb and influence rights that we’ve been given under the First Amendment.”
At the most recent meeting, on Feb. 9, defense lawyers gave committee members recommendations that included the N.C. State Bar creating a system to expunge some public disciplinary actions against attorneys from the public record.
They also asked that less information be shared with people who file complaints about lawyers.
How does the process work now?
State Bar statistics show that complaints against attorneys, which the state bar calls grievances, have increased in recent years while discipline has declined.
State Bar statistics indicate that grievances jumped to a nine-year high from 1,222 in 2014 to 1,504 in this growing state in 2023.
In 2014, there were 33 grievances resolved with private discipline and 28 resolved with public discipline. The disciplinary hearing commission resolved 34 cases with discipline.
In 2023, there were 18 private written disciplines for grievances and 20 public written disciplines. The disciplinary hearing commission resolved 14 cases with discipline.
The process that leads to actions against lawyers starts with the North Carolina rules of professional conduct, which define the code of ethics for attorneys in the state. The North Carolina State Bar is tasked with investigating and holding attorneys who violate those rules accountable.
Individuals who have concerns about an attorney can take a number of routes through the State Bar, including filing grievances. Once a grievance is filed, a State Bar attorney investigates and shares a report and recommendation with the grievance committee.
That kicks off a process that can take years to work its way through the system, which people seeking action against lawyers have complained about, and is not always transparent to the public.
Most grievances are dismissed early in the process because they don’t allege a rule was broken, or they are disproven by evidence provided by the accused attorney, according to information provided by the State Bar.
Grievance complaints and related documents remain confidential unless the committee issues a public reprimand or censure, or refers a case to the disciplinary hearing commission. The commission has public hearings and can impose more severe discipline, such as suspension or disbarment.
Once the grievance committee issues a reprimand, an attorney can accept the recommendation, reject it and go to a hearing before the disciplinary commission, or request another review by the Grievance Review Panel, a process that lawmakers established in 2022.
The panel allows the attorney to submit additional materials and argue before the panel in person or through an attorney.
What are the concerns before the new committee?
The committee, which was established through language in the Republican-crafted state budget, started meeting last month to review and make recommendations that they say will improve the effectiveness and fairness of the grievance process. Members will produce a report on their findings by April 1.
Although concerns about partisan influence were mentioned in the initial meeting on Jan. 24, committee members didn’t reference a specific instance in which lawyers had been targeted for their beliefs, nor were they able to provide any in subsequent interviews.
But co-chair Lawrence Shaheen, a Charlotte lawyer and GOP consultant, sounded a theme similar to what his co-chair said. The disciplinary process “must be done in a way where there is not going to be questions about any type of issues of partisanship, nor other issues of concerns about what the individual believes outside of the practice of law,” Shaheen said.
After the first meeting, lawyers from the House Democratic Caucus issued a statement in response to the committee’s co-chairs’ comments.
“The purpose of the State Bar’s attorney discipline process is to protect the citizens of North Carolina, not to protect lawyers,” the statement, signed by 15 House Democrats, said.
Accused attorneys are entitled to due process, but the complaint investigation results should be public, the statement said.
Colon Willoughby, former president of the State Bar and the only Democrat on the committee, questioned how far confidentiality can go, considering that complainants can make their grievances public online outside of official proceedings.
“I think that we need to be aware of that, and structure our process so that the public has a good view of the nature of the complaint, the way it’s being handled and the result,” he told The N&O.
But some of the presenters at Friday’s meeting suggested the process should be more private. Joshua Walthall, a former State Bar employee who now represents defense attorneys, and fellow attorney Alan Schneider suggested that complainants not be notified if the lawyer they reported is disciplined privately, because they could then make the discipline public by sharing it on social media.
In the paper Walthall and Schneider presented to the committee, they also proposed establishing a process to have public reprimands expunged.
Carmen Bannon, legal counsel for the State Bar, cautioned against removing some transparency from the process.
“If I have a lawyer defendant who is serially molesting young clients, I want that complaint to be public because it may be a year and a half before we go through the process,” she said. “...I think it’s important for the public to at least know that these allegations have been made.”
White told Bannon the committee was not suggesting protecting defendants in cases such as that one.
“Nobody wants to protect or make it easier for bad lawyers that have done bad things to get away with it or stymie or frustrate or prolong what your job is — which is to get them out of the practice as soon as possible,” he said.
Virginia Bridges covers criminal justice in the Triangle and across North Carolina for The News & Observer. Her work is produced with financial support from the nonprofit The Just Trust. The N&O maintains full editorial control of its journalism.
NC Reality Check is an N&O series holding those in power accountable and shining a light on public issues that affect the Triangle or North Carolina. Have a suggestion for a future story. Email realitycheck@newsobserver.com.
CORRECTION: An earlier version of this story incorrectly referred to Woody White as a former member of the UNC Board of Governors. He is a current member of the board.
This story was originally published February 12, 2024 at 6:00 AM with the headline "Will state panel recommend more or less transparency for NC attorney complaints?."
